Another worrying case for website owners?

Headline

There has been a further High Court decision ordering the disclosure of the identity of users to a football fan website who had anonymously posted allegedly defamatory statements. The Court also considered the seriousness of the postings when considering whether or not to exercise its discretion to make an order for disclosure by way of a Norwich Pharmacal Order.

Case Details

(1) Sheffield Wednesday Football Club Ltd & 7 Ors v Neil Hargreaves (2007) EWHC 2375 (QB). High Court, Queen's Bench (Richard Parkes QC as a Deputy Judge).

Context

Any comment on a website forum is actionable in the same as it would if it was published in the traditional media. The internet is therefore a medium of virtually limitless international defamation.

The elements of a defamation claim:-
(a) That the statement was "defamatory" of the Claimant.
(b) That the words have been published.
(c) That the defamatory words refer to the Claimant.
Although websites may take steps to disclaim liability, posted on a website forum, if they choose to edit the post they will lose the protection offered under Section 1 of the Defamation Act 1996.

Section 1(1) provides that in defamation proceedings a person has a defence if he shows that:–

(a) He was not the author, editor, or publisher of the statement complained of;
(b) He took reasonable care in relation to his publication; and
(c) He did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

Websites are therefore advised to follow a "notice and take down" procedure. Once notified of the defamatory material then in order to come within the defence it would be sensible to remove the material.

A difficult issue arises where the identity of the users of the website who post the defamatory is not known. In such circumstances, an application can be made for Norwich Pharmacal relief against the owner and operator of a website.

A Norwich Pharmacal order requires a respondent to disclose certain documents or information to the applicant. The respondent must be a party who is involved or mixed up in a wrongdoing, whether innocently or not, and is unlikely to be a party to the potential proceedings.
In the case of Matsui & Co Ltd & Nexen Petroleum UK Ltd [2005] EWHC 625 Lightman J set out the Norwich Pharmacal principle as follows:
1) A wrong must have been carried out or arguably carried out;
2) There must be a need for the order to enable an action to be brought against the wrongdoer
3) The person against whom the order is sought is somewhere mixed up in the wrongdoing
Facts

This is a claim by Sheffield Wednesday Football Club Ltd, the Chairman, the Chief Executive and 5 directors for Norwich Pharmacal releief against Neil Hargreaves, who owns and operates a website www.owlstalk.co.uk. The website allows fans who become registered users the opportunity to discuss their views on matters relating to the football club. The Claimants claim that the website was used by various users to pursue a "campaign of vilification" against them. Originally the identity of 13 members was sought but at the hearing this was reduced to 11 members in respect of 14 postings.

Decision

Disclosure of the identity of 4 users of the website who had posted between them 5 alleged defamatory statements was ordered. Disclosure against the identity of the other 6 members who had posted between them 9 allegedly defamatory statements was refused because the remaining postings were considered to be barely defamatory or little more than mildly abusive or likely to be understood as jokes and not intended to be taken seriously. As with all Norwich Pharmacal orders the Claimants agreed to pay the Defendant's reasonable costs of the application and of compliance with the Order.

Comment

The case does not change the general position with regard to internet libel and website owners should still operate a take down and notice procedure. It is a partial victory for Sheffield Wednesday and shows that the Court will closely examine the merits of disclosure of the source before making any decision. It is also important to bear in mind that a website operator can only disclose the information that it has. If users have therefore registered using false information then this may not assist Claimants once they have possession of the information.